Implications for Legal Practice in UAE

A very essential implication for those who practice law is the likely impact of Shari’ah, particularly when handling products commercially. They have to consider this very carefully and not be deceived by reading the English translation of the UAE law. This is because it could seem to be settling and lead to misunderstanding. The approaches through which a UAE court usually implements the provision should be considered by the practitioners. Also the degree to which Islamic jurisprudence can impact that provision’s interpretation should be considered327_.

To further explain its significance, we would discuss a practical example which is a case that lately occurred. The case was dealt in the Federal Supreme Court and was regarding Margin Trading Agreements. The previous decisions regarding Margin Trading Agreements were reversed by the Federal Supreme Court and such agreements was declared to be haram as per 327 _{Webb. M, (2010), Shari’ah as a source of UAE Law, Available at}

http://www.hadefpartners.com/News/pageid/120-137/default.aspx?mediaid=151, Access July 2014. 122

Shari’ah. The court decreed that only those commercial activities that are in agreement with Shari’ah will be permitted. Margin Trading Agreements were permitted by the court in accordance with UAE law328. According to the court, Margin Trade Agreements have been discussed in the UAE banking law and Federal Law No.10 of 1980. The abovementioned presumption has been presented that if there is an express provision of codified legislation, then a provision is in accordance with Shari’ah. 329

3.16.5 Defining The Role Of Shari’ah In The UAE’s Legal Foundation

Although Shari’ah holds a significant role in UAE law, it is quite common for people to misinterpret its application. To understand the difference between non-Islamic and Islamic law, it is important to realize the intention of the founders. According to the UAE constitution, the official religion of the Union is Islam and the main source of legislation is Islamic Shari’ah.331 It is, however, difficult to determine the law in some cases, since there are instances where certain legislation has been introduced in contradiction to the UAE civil code. As we have seen, Shari’ah is the chief source which guides and shapes the law; however, it is not the only one. Hamade points out that, in the case of absence of a provision of UAE law which does not cover a particular issue, the courts will reach a judgement with respect to Shari’ah. The government has so far been successful in maintaining and blending Shari’ah with policies of expatriated non- Muslims and also protecting the integrity of the founders.

The UAE has started to merge Shari’ah law and man-made law: for instance, family law. The UAE has made it mandatory that Shari’ah is used as the foundation of legal issues related to the family. Personal status law, covering marriage, succession and divorce, extends to all UAE nationals, except for places where non-Muslims reside and have their own religious and sectorial 328 _{Webb. M, (2010), Shari’ah as a source of UAE Law, Available at}

http://www.hadefpartners.com/News/pageid/120-137/default.aspx?mediaid=151, Access July 2014.

329 _{Webb. M, (2010)Sharia as a source of UAE Law Available at http://www.hadefpartners.com/News/pageid/120-} 137/default.aspx?mediaid=151 Accessed July 2014.

330_{56 Diana Hamade (2011)Defining Sharia's role in the UAE's legal foundation available at}

http://www.thenational.ae/thenationalconversation/comment/defining-sharias-role-in-the-uaes-legal-foundation, Accessed July 2014.

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rules. Furthermore, Article 1 states that this law can apply to non-UAE nationals too, but they can also choose their own law instead.

The nation's criminal code has similar distinguishing characteristics. For example, in the case of an injury or death, Shari’ah allows the payment of blood money. Other crimes like fornication, killing, abandoning of Islam, homosexuality and adultery are all classified under‘Al Hudud'. They are all punishable by a predefined penalty such as the amputation of an arm and flogging. Despite this, certain Emirates do not follow these strict punishments. They have replaced these penalties by, for example, payment of fines and jail sentences.

The business sector is also covered by Islamic law. Examples include prohibition of unjust enrichment and banning of transactions with high risk and other financial circumstances where exploitation is possible.

The prohibition of unjustified enrichment has been recognized in UAE Federal Law No.5 of 1985 which concerns civil transactions (Article 714). There are three main principles that follow Shari’ah which form the foundation of Islamic economics. These three principals include Riba, which basically prohibits charging interest, PLS, profit and loss sharing and Gharar, which is speculation and uncertainty. Following these principles, Islamic finance has flourished and thrived in the UAE.

Some work is being done on the establishment of a higher Shari’ah council by federal officials. This will ensure supervision of the Islamic finance sector by the state, which would replace the current civil code law provision with respect to Islamic finance.

It should be pointed out that Shari’ah is not as immovable or as rigid as many people believe it to be. In truth, Shari’ah is fairly flexible if it is applied and understood in the right way. It is in fact very compatible with the modern legal system.

It should be understood that the Holy Quran or the Prophet's Sunnah, or the Islamic Scholar's ruling cannot provide specific solutions to every individual detail of life, when we say that Islam gives a fulfilling solution for every problem in every situation. Through Quran and Sunnah, broad principles have been laid down under which scholars deduce solutions and answers for every new situation and interpret it accordingly. This process of decision-making is known as Ijtihad. It is an ongoing process where new ideas can be developed as long as their underlying meaning relates to the aforementioned sources.

The principles of freedom and democracy are core principles of Islamic law. It is unfair to Shari’ah as well as the public to deny these rights to the people. Scholars and lawyers need to cooperate with each other in order to develop appropriate laws, instead of blaming Shari’ah when the law fails to adapt to the interpretation of Islamic law.

The significance of Islam as a modern and a current day ideology that influences the environment globally is not completely appreciated. Islamic jurisprudence lays down clear standards and laws about the allocation and usage of resources such as water, land, minerals, animals and even manpower. It has a framework for issues concerning pollution, ownership, ethics of land, aesthetics and the role a man is to play on earth. Most of these topics hold values that differ from those that are influential in the West. Not much is known by scholars in the West or by the international development community about Islamic law. As Islam is said to be a global faith, it is very important to bridge this gap. Shari’ah is gradually being adopted in many Muslim countries such as Pakistan, UAE, Saudi Arabia and Sudan. It will have a great influence on how policies develop in these countries regarding the management of resources. It is believed that this trend will grow quickly, as it is believed by Muslim intellectuals that it is important that Islam makes a significant social contribution.332

Moral issues are normally taken as something which are beyond the law and the study of economics. This is of concern to many Muslims as they believe that Islam does not only lay down moral values but also deals with economics. It is interesting to note that even in Europe, economics 332_{Hamed. S,nd, Seeing the Environment through Islamic Eyes: Application of Shariah to Natural Resources Planning} and Management Texas Teach University available at WWW.TTU.EDU Accessed June 2014.

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followed religious foundations until the late 1700's. Before this, most of the economists in Europe were either priests or theologians. Scholastic economics was developed and presented by the Church through, for example Augustine and Thomas Aquinas. They held Christian beliefs and considered issues of people and land based on religion. After the Industrial Revolution, economists started to detach economic study from religion and resisted the Church and its authority. This revolt was gradually mollified in the West and never really happened again in the East. 333

There are some economists today who believe that it is wrong to deny the relationship that existed between religion and economics in the past and feel that there is somehow, always some moral association attached to economics. It is perhaps not of interest to many today to link economics and ethics. This approach is discussed by the Czechoslovakian American Eugene Lovell in his book ‘Humanomics’. According to Lovell, Humanomics is an economy that is for human beings in their entirety. Lovell points towards a gradual movement towards economic concepts which do not regard morality and religion as insignificant. 334

There are five maqasids or aims of Shari’ah: the protection of deen (religion),nafs (life), nasl( offspring), aql (mind) and ma'al ( property).335Shari’ah believes that environmental degradation will bring an end to the ownership of property, begetting children and piety. Hence, it is important to achieve the goals of Shari’ah. Some Quranic verses command Muslims to protect nature, consider the relationship between the environment and living things and to include logic in decisions. The Quran also asks Muslims to maintain the balance God has put into Creation. 336 Hence, through these five aims of Sharia'h, it can be seen that it is very important in Islamic law that the environment is protected in all aspects of life.

Legislation has a significant role in those countries that adopted codified civil law instead of a legal system similar to the Common Law System which is based on judicial precedents. There is a greater emphasis on the progress of legislation in those jurisdictions that have adopted Shariah 333_{Monzer Kahf ,Islamic Economic System –Areview: Al-ittahad(January1978)Plainfield, Indiana.}

334_Ibid

335 _{Practically, Shariah has clear instructions such as harim (preserved natural environments) and him a (protected} land for grazing purposes) which can be applied to nature conservation within Islamic law.

336 _{Hasan Zillur RahimEcology in Islam: Protection of the Web of Life: a Duty for Muslims Washington Report on} Middle East Affairs October 1991, Page 65www.wrmea.com/back issues/1091/9110065.htm

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as the underlying source of the legal system, such as the UAE. This is due to the two main principles of Islamic Law.

Discretionary interpretation is not allowed for issues that come under specified legislation. When such a specific law does not exist, then Islamic law is implemented by the courts. It is necessary for them to then apply the Islamic jurisprudence and its principles of justice. Precedents are not obligatory in Islamic law. The decisions passed by other judges do not have to be considered by a judge when these principles are applied. Even a judge’s past decisions do have to be considered.

These principles have been confirmed in the Civil Code of the Ottoman State; namely, Majalat Al-Akham Al-Adlia (Al Majala), which is based on Islamic Law. Its derivation was from the Hanfi Sect, and its compilation was undertaken by jurists and promoted in Istanbul in 1286 H (1836). It was then applied to all those Arab countries under Ottoman rule and continued until the First World War. Once independence was achieved, Al Majala was still applied by these countries when they finally began to promote their independent civil codes. Even today, Al Majala is a significant influence on Islamic Law. According to Al Majala, every case should be judged on individual merit.337

As described earlier, the Constitution claims that Shari’ah is the chief source of law in the UAE. It also provides that the Federal Supreme Court's decisions are binding. Even though the decisions by the Federal Supreme Court are not a part of legislation, they are still very important and help to determine the Law. Some difficulties can arise with interpreting the decisions of the Federal Supreme Court in the light of other Appeal Courts. A quarterly periodical is published by the Federal Ministry of Justice, which contains legal articles and recently made decisions by the courts. However, a classified law report is not available to help judges and lawyers where they are not clear about the interpretation of a rule.

337_{http://gulf-law.com/uaecolaw_legalsystem.html}

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